Ahern v Bus Éireann

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 16 May 2006
• Neutral Citation: [2006] IEHC 207
• Court: High Court
• Docket Number: [No. 2805P/2005]
• Date: 16 May 2006

AHERN v BUS EIREANN

LIMERICK

BETWEEN:

ROSE AHERN

PLAINTIFF

AND

BUS ÉIREANN

DEFENDANT

[2006] IEHC 207

[No. 2805P/2005]

THE HIGH COURT

NEGLIGENCE

Personal injuries

Damages - Assessment - False or misleading evidence - Onus on defendant to showplaintiff has given false or misleading evidence - Onus on balance of probabilities -Onus on plaintiff to ensure replies toparticulars accurate - Whether detailsinaccurate - Whether overall correct insubstance - Mulkern v Flesk [2005] IEHC 48(Unrep, Kelly J, 25/2/2005), Shelly Morris v Bus Atha Cliath [2003] 1 IR 232 and Vesey vBus Eireann [2001] 4 IR 192 considered -Civil Liability and Courts Act 2004 (No 31),s 26 - Section 26 not established; EUR40,000damages awarded to plaintiff (2005/2805P - Feeney J - 16/5/2006) [2006] IEHC 207 Ahern v Bus Éireann

: The defendant alleged that the plaintiff’s claim for damages for personal injury as to the necessity for continuing care was fraudulent, pursuant to s. 26 of the Civil Liability and Courts Act 2004. The defendant alleged that the elderly plaintiff did not require the assistance of a carer, had provided false and misleading evidence and that the affidavit of verification provided pursuant to s. 14 of the Act of 2004 was false and misleading.

Held by Feeney J. (ex-tempore), in awarding a sum of €40,000 to the plaintiff, that the onus of proof of proving the applicability of s.26 on the balance of probability rested on the defendant. The plaintiff had not knowingly given false or misleading evidence and the contention as to her increased need for care or minding had not been exaggerated. The affidavit of verification as provided pursuant to s. 14 had not been established to be false or misleading.

Reporter: E.F.

CIVIL LIABILITY & COURTS ACT 2004 S14

CIVIL LIABILITY & COURTS ACT 2004 S26

CIVIL LIABILITY & COURTS ACT 2004 S26(1)

CIVIL LIABILITY & COURTS ACT 2004 S26(2)

MULKERN v FLESK 2005/40/8413

GEORGOPOLUS v BEAUMONT HOSPITAL BOARD 1998 3 IR 132

SHELLEY-MORRIS v BUS ATHA CLIATH (DUBLIN BUS) 2003 1 IR 232

VESEY v BUS EIREANN 2001 4 IR 192

EX TEMPORE JUDGMENT of

Mr. Justice Feeney

delivered the 16th day of May, 2006

1 The pleadings in this case indicate a claim for personal injuries for negligence and breach of duty against the Defendant arising out of an event on one of the Defendant's buses on 13^th November, 2004. The usual pleadings were exchanged and a defence was delivered wherein liability was admitted in that the only denial was that the Plaintiff had suffered the alleged injuries, loss or damage. There were a number of letters, notices of particulars, and also affidavits of verification pursuant to section 14 of the Civil Liability and Courts Act 2004.

2 In normal circumstances this case would have proceeded on a straightforward assessment basis, where the Court's function would have been to assess the quantum of damages. However, it was apparent from the correspondence from the Defendant's solicitors that they viewed a central issue as being whether there was any basis for the claim for continuing care.

3 The then position of the Defendant was clearly set forth in the letter of 31^st January, 2006 from Dermot G. O'Donovan and Partners. I should quote certain extracts to identify that position. it was stated:

"It is also accepted that the Plaintiff sustained injury in this occurrence. What is not accepted is the extent of the injuries as now claimed by the Plaintiff."

4 The letter went on to say:

"The Plaintiff who had not indicated any item of special damage in the personal injury summons puts forward a case based upon the premise that she is so disabled and unwell that she is unable to care for herself. Despite the fact that she is assisted, according to herself, in her home by members of her family who live close to her, she now puts forward a claim for her carer or carers."

5 The letter indicated on the final page:

"We do not accept that your client is either injured or incapacitated to the extent that she requires a carer on the basis set out by Noreen Roche. The essential contest is whether or not your client is entitled to the employment of a carer as a consequence of her injuries. We say she is not. The concept of a carer being required as a consequence of the Plaintiff's injuries is an important consideration for the Court."

6 The defence expressly proceeded on the basis that the conduct of the claim was a fraudulent action within the terms of section 26 of the 2004 Act, and that the claim should be dismissed. This line of defence was apparent from the outset and was indeed referred to in the opening of the case on behalf of the Plaintiff. As the case was presented, the nature of the Defendant's reliance on section 26 of the Act became apparent. The factual basis was a claim that:

7 a (A) the Plaintiff did not require the assistance of a carer and that there was no consequence of the injuries she received properly giving rise to such a claim,

8 b (B) that the Plaintiff had provided false and misleading evidence, averments, information, relating to the psychological consequences of the accident, including her ability to travel alone, and

9 c (C) that the second affidavit of verification sworn by the Plaintiff on 17^th February, 2006 was false or misleading in a material respect, and known to be false by the Plaintiff.

10 These factors either taken alone or together meant that on the Defendant's submission that the provisions of section 26(1) and also section 26(2) applied to the facts of this case and that the Plaintiff's claim should be dismissed. It is the applicability of section 26 to the facts of this case which is the central matter for consideration. Section 26 of the 2004 Act it is argued applies in this case in that pursuant to subsection 1 the Plaintiff would lose her entitlement to damages and the Court absent stated reasons would if it found the evidence given or adduced to be false or misleading in a material respect, and also if the court found that the Plaintiff knew such evidence to be false or misleading, the consequences are that the action should be dismissed. Section 26(2) is also argued and similar provisions relate therein in relation to a person who has sworn an affidavit.

11 It is in my view correctly contended that the onus of proving the applicability of the section 26 rests on the Defendant. That onus is on the basis of probability. I agree with the statement of Kelly J. in Mulkern v. Flask and Another, judgment of 25^th February, 2005, page 6 of 7 of that text:

"That before the court could apply the provisions of section 26(1) of the Act, it would have to be satisfied as a matter of probability that the evidence given by the Plaintiff was false and misleading in a material respect, and"

"that the Plaintiff knew her evidence to be false or misleading."

- that is my emphasis -

12 In the light of the approach outlined by the Supreme Court. inGeorgopolus v. Beaumont Hospital Board [1998] 3 I.R. 132 in the judgment of Hamilton C.J., this Court must have regard to the fact that even though the civil standard of probability applies rather than the criminal standard, regard must he had to the seriousness of the matter being alleged, the gravity of the issue and the consequences in considering the evidence necessary to discharge the onus of proof.

13 This Court clearly accepts that the telling of deliberate falsehoods in respect of one aspect of the claim might have implications for the Plaintiff's credibility in general, and might mean that the Plaintiff failed to discharge the required burden of proof; either generally or with regard to an aspect of her claim. See the decision ofShelly Morris v. Bus Átha Cliath, [2003] 1 I.R. 232, the judgment of Denham J. at p. 239:

"Such potential implications are over and above any issues arising under section 26."

14 However, in applying this approach the Court gains assistance from the judgment of Denham J. at p. 239 where she identifies different possible circumstances which include:

(a) concocted,

15 (b) a genuine claim, but the effect of the injuries is exaggerated by the claimant because of the subjected belief that the injuries had a worse effect than they have, and

16 (c) the deliberate exaggeration of injuries knowing that he or she is exaggerating the injuries and their effects.

17 This categorisation is to some considerable extent mirrored in section 26 where the use of the word 'and' in subsection 1 and subsection 2 requires the Plaintiff to have knowledge of the falsehood or misleading effect.

18 The Court also has the assistance of the judgment of Hardiman J. inVesey v. Bus Éireann, [2001] 4 I.R. 192, where he makes it clear that it is not the responsibility of the judge to disentangle the Plaintiff's case where it had become entangled as a result of lies and misrepresentations systematically made by the Plaintiff. This clearly is the case where the Court is satisfied that there is such lies and misrepresentations. The judgement of Hardiman J. at p. 198 also dearly points out the true and correct position that:

"A Plaintiff in an action is personally responsible for the factual content of the replies to particulars and cannot, and must not, be allowed to hide behind professional advisors in relation to claim."

19 Also it is clear that a Plaintiff has an unquestioned responsibility to ensure that an affidavit sworn by him or her is factually accurate irrespective of the position under section 26(2).

20 A starting point for the Court in considering the matters in issue in...